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DANIEL J. BRODERICK, #89424

Federal Defender

ANN C. McCLINTOCK, Bar #141313

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, California 95814

Telephone: (916) 498-5700

Attorney for Petitioner

JOHN HERMAN PIRTLE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN HERMAN PIRTLE,

Petitioner,

 v.

CALIFORNIA BOARD OF PRISON

TERMS, et al.,

Respondents.

_______________________________

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DC No. 2: 04-cv-0518 FCD KJM

Eastern District of California, Sacramento

APPLICATION FOR WRIT OF

HABEAS CORPUS AD

TESTIFICANUM;ORDER FOR WRIT

OF HABEAS CORPUS AD

TESTIFICANDUM

Date: August 27, 2010

Time: 9:00 a.m.

Judge: Hon. Frank C. Damrell, Jr.

APPLICATION FOR WRIT OF HABEAS CORPUS 

AD TESTIFCANMUN

Petitioner, JOHN HERMAN PIRTLE, prisoner number C-20936, by and through

the Office of the Federal Defender, requests this Court issue a writ of habeas corpus ad

testificandum compelling Respondents to produce Mr. Pirtle at the U.S. District Court before

the August 27, 2010, hearing in this matter so that Mr. Pirtle is available for interview by

pretrial services and to produce him in court for the hearing on the pending motion for

immediate release so that he is available to testify at the hearing. 

/ / /

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 The Board of Prison Terms has been replaced by or converted into the Board of Parole Hearings. Petitioner shall simply reference either entity as the “Board.”

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ARGUMENT

In 2007, this Court has determined that Petitioner was unconstitutionally denied

parole in 2002. This Court granted Petitioner habeas relief after concluding there was no

evidence to support the March 25, 2002, California Board of Prison Terms’s1/

 decision to find

Petitioner unsuitable for parole. Docket entry no. 20, 25. 

Petitioner has been incarcerated in state prison for nearly 30 years. This Court

granted Petitioner habeas relief over three years ago. Petitioner has suffered a long delay in

his release prompted by the Respondents’ appeal and stay of the remedial order. Now that

the Ninth Circuit has affirmed this Court’s judgment and issued its mandate, and now that the

Board has determined Petitioner is suitable for parole and set his term, Petitioner should not

have to remain in prison serving an excessive amount of time for his commitment offense.

The Board determined that a 124 month term of imprisonment was enough time to punish him.

Petitioner fully completed serving this term many years ago and now has almost 30 years in

custody. Nonetheless, Respondents continue to keep Petitioner imprisoned while awaiting

further administrative review of the Board’s August 11, 2010, decision to grant parole and set

a parole date that is approximately April 26, 1991. 

Petitioner has filed a motion seeking an order for Petitioner’s immediate release,

Docket entry no. 46, which we expect this Court to set for hearing on August 27, 2010, at 9:00

a.m. See Docket entry no. 44. Petitioner believes that this Court’s release decision will benefit

from information it may gain from Petitioner and from the participation and assistance of

pretrial services. As mentioned in the motion for release, Petitioner’s family is supportive of

Petitioner’s parole and are active in his parole plans. Petitioner plans to live with his sister,

Joan Keith, in Gridley, California. Making Petitioner available to pretrial services will also

assist the Court in its decision making. For this reason, Petitioner asks that he be brought to

the United States District Court or other local locale and be made available to pretrial services

for an interview before the hearing on his motion for his immediate release.

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2

 This Court has broad authority to order a prisoner’s release pending appeal of a grant of habeas corpus and that authority is governed by the standards of Fed. R. App. P. 23(c). The Court's authority starts with the presumption that the prisoner will be release on his own recognizance with or without surety. Id.; Hilton v. Braunskill, 481 U.S. 770, 774, 107 S.Ct.

2113, 95 L. Ed. 2d 724 (1987); Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir. 1987). The power derives from the Court’s power to issue the writ itself. Marino, 812 F.2d at 508. Bail

may be set, but is not governed by the Bail Reform Act. Id.

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To determine what, if any, conditions the Court should impose on Petitioner’s

release,2/

 the Court should issue the writ so Petitioner is available at the hearing and so that

pretrial services may interview Petitioner, in addition to others, in advance of the August 27,

2010, hearing.

CONCLUSION

This court should exercise its inherent power to enforce its habeas grant, and its

power under Fed. R. App. P. 23(c), by ordering Petitioner’s release pending Respondents’

appeal. To best determine what, if any, conditions the Court should impose on Petitioner’s

release, the Court should issue the writ of habeas corpus ad testificandum so that Petitioner is

available as a witness at the August 27, 2010, hearing and so that pretrial services may

interview Petitioner, in additional to others, in advance of that same hearing.

Dated: August 13, 2010

Respectfully submitted,

DANIEL J. BRODERICK

Federal Defender

 /s/ Ann C. Mc

Clintock 

ANN C. McCLINTOCK

Assistant Federal Defender

Attorneys for Petitioner

JOHN HERMAN PIRTLE

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DANIEL J. BRODERICK, #89424

Federal Defender

ANN C. McCLINTOCK, Bar #141313

Assistant Federal Defender

801 I Street, 3rd Floor

Sacramento, California 95814

Telephone: (916) 498-5700

Attorney for Petitioner

JOHN HERMAN PIRTLE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN HERMAN PIRTLE,

Petitioner,

 v.

CALIFORNIA BOARD OF PRISON

TERMS, et al.,

Respondents. _______________________________

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DC No. 2: 04-cv-0518 FCD KJM

Eastern District of California, Sacramento

WRIT OF HABEAS CORPUS AD

TESTIFICANDUM

Date: August 27, 2010

Time: 9:00 a.m.

Judge: Hon. Frank C. Damrell, Jr.

TO: Gary Swarthout, Acting Warden of California State Prison, Solano,

Vacaville, CA, 95696,

YOU ARE COMMANDED to produce prisoner John Herman Pirtle (C-20936)

to testify before the United States District Court for the Eastern District of California, 501 I

Street, Sacramento, California, 95814, in Courtroom 2, 15th Floor, on August 27, 2010, at 9:00

a.m., and from day to day until completion of the proceedings, and to make the prisoner

available to pretrial services for interview before the hearing; and thereafter to return the

prisoner to the above-named institution, unless otherwise ordered by the Court.

FURTHER, you are ordered to notify the Court of any change in custody of the

prisoner and to provide the new custodian with a copy of this writ. 

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The Clerk of the Court is directed to serve a courtesy copy of this order and writ

of habeas corpus ad testificandum on the Out-To-Court Desk, California State Prison, Solano,

2100 Peabody Road, Vacaville, CA 95696 

Dated: August 16, 2010

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